Analysis: Defense may be unable to rein in Moussaoui

His testimony may be more valuable for the prosecution

Michael J. Sniffen, The Associated Press

Updated 9:00 pm, Sunday, March 26, 2006

ALEXANDRIA, Va. -- After three rocky weeks, prosecutors wound up on a strong note as they rested their case for executing al-Qaida conspirator Zacarias Moussaoui. But the witness who could prove most valuable for them has yet to take the stand: the defendant himself.

For most of the trial, lawyers for the only man charged in this country for the attacks of Sept. 11, 2001, seemed to be making more points than the government from the prosecution's witnesses. But former FBI agent Aaron Zebley and federal aviation security official Robert Cammaroto finally managed to get across the prosecutors' main points late last week -- even though a legal shadow lingers over their testimony.

Then the once-volatile Moussaoui, who remained quiet through court sessions since the trial began March 6, reaffirmed that he still intends to do what he has been trying to do for three years: tell his story in his own words.

The 37-year-old Frenchman of Moroccan descent seized his customary moment, a recess. The judge and jury always leave first; marshals keep Moussaoui at his separate table until they are gone. That is when Moussaoui usually mutters or shouts something such as "God curse America" or "God bless al-Qaida."

At the recess after prosecutors rested, he yelled, "I will testify, Zerkin, whether you want it or not."

Gerald Zerkin is one of the lawyers appointed to defend Moussaoui after U.S. District Judge Leonie Brinkema decided Moussaoui was too abusive to continue representing himself. Moussaoui has refused to cooperate with his defense team.

It is no secret defense lawyers do not want Moussaoui on the stand complicating their case.

"His behavior is so erratic it's hard to know what his testimony will mean for his case," said University of Richmond law professor Carl Tobias. "But he has a right to testify."

Moussaoui's consistent position for the past three years is not hard to understand, but it is fraught with legal peril.

He pleaded guilty last April to conspiring with al-Qaida to fly planes into U.S. buildings. He has said consistently he was not part of the Sept. 11 operation but was training to hijack a 747 jetliner and fly it into the White House if the United States refused to release a blind, radical Egyptian sheik imprisoned for life for other terrorist plots in New York.

On July 18, 2002, Moussaoui tried to plead guilty to some charges. Brinkema decided Moussaoui did not understand his legal situation and stopped him then, but not before he said:

"I have no participation in Sept. 11, but ... I have certain knowledge about Sept. 11, and I know exactly who done it. I know which group, who participated, when it was decided."

Longtime federal prosecutor E. Lawrence Barcella Jr., now in private practice, said in an interview, "If Moussaoui says that on the stand, he may well rescue victory for the prosecution from the jaws of defeat."

The jury in this sentencing case has to choose between execution or life in prison without a chance for release. To obtain a death penalty, prosecutors must show that an act of Moussaoui's led directly to at least one of the nearly 3,000 deaths when al-Qaida flew four planes into the World Trade Center, the Pentagon and a Pennsylvania field.

That act, said prosecutors, was lying to FBI agents after he was arrested while taking pilot training in Minnesota on Aug. 16, 2001. But the case they have laid out goes beyond that.

Their most compelling witnesses were Zebley and Cammaroto.

Zebley spelled out how FBI agents could have taken information about a money transfer Moussaoui got by wire from Germany to trace business records and ultimately identify 11 of the 19 Sept. 11 hijackers within weeks.

Zebley and Cammaroto testified these steps could have been taken if Moussaoui had confessed in August 2001 to the details he provided in his 2005 guilty plea. They were not asked, however, what steps could have been taken if Moussaoui had only kept silent instead of lying.

Defense lawyers say those witnesses' testimony is legally out of bounds because, under the Fifth Amendment, Moussaoui was not required to incriminate himself. If he had not lied, he could have just remained silent, they argue in a motion on which Brinkema has not yet ruled.

But she has warned prosecutors she knows of no case where a death penalty was imposed because of a failure to act, and last week she told the jury that it can't decide Moussaoui's case "on speculation. ... Nobody knows what would have happened."

Meantime, law professor Tobias believes "the government's case was not very strong. ... Some FBI witnesses were more helpful to the defense."

FBI agent Harry Samit, who arrested Moussaoui, accused his superiors of "criminal negligence" in rejecting 70 entreaties he made during August and early September 2001 to get a search warrant for Moussaoui's computer and start of full criminal investigation.